Sterilised woman became pregnant twice, but no ACC

A woman who wanted ACC compensation because she fell pregnant twice after sterilisation has been declined cover for one of the births because she knew she was fertile and had unprotected sex.

The woman, whose name is suppressed, underwent a sterilisation operation after a caesarean section delivery in 2007. She fell pregnant and had a child in 2009.

She fell pregnant again after that and had another child in August, 2010, after which both her fallopian tubes were removed.

In June 2013 the woman made a claim to ACC on the basis the failed sterilisation had caused the two pregnancies. The claim was declined and upheld at review.

The sterilisation operation was found to have been performed correctly, but a fistula had formed after the operation that enabled pregnancy to occur.

ACC investigated further and last August agreed to grant cover of an unstated sum for the first pregnancy because she had not given informed consent for a fimbriectomy performed as part of the sterilisation operation.

In an appeal regarding the second pregnancy, held in the Napier District Court late last year, the woman, through her lawyer, argued that the failure to sterilise her had persisted until August 2010, when her fallopian tubes were removed.

She said the fact she had not been using contraceptives when she fell pregnant the second time was irrelevant.

ACC argued the woman knew she was fertile after the first pregnancy ‘‘and then had unprotected intercourse, which was the effec- tive cause of the second pregnancy’’.

Judge Denise Henare said the evidence clearly indicated the woman knew she was fertile after the first pregnancy, and that she had been offered tubal ligation, or sterilisation, by her doctors on a number of occasions before and after her first pregnancy.

‘‘The fact too that the appellant wanted to be sterilised does not mean she is statutorily entitled to cover for the second pregnancy. [The ACC Act] specifically provides that failure to achieve the desired result of treatment, in this case sterilisation, does not mean a treatment injury has occurred. A causal link between treatment and injury must be established,’’ Henare said.

The woman knew she was fertile and the treatment had not caused the second pregnancy, she said.

‘‘Her treatment lost all causal potency after she conceived the first pregnancy, because she was then in the same position, that is, fertile and aware of it, as she had been prior to treatment,’’ Henare said.

The appeal was dismissed.